State v. Lua

• Decision Date: 19 June 2015
• Docket Number: No. CR–14–0283–PR.,CR–14–0283–PR.
• Citation: 350 P.3d 805,237 Ariz. 301
• Parties: STATE of Arizona, Appellee, v. Christepher E. LUA, Appellant.
• Court: Arizona Supreme Court

237 Ariz. 301

350 P.3d 805

STATE of Arizona, Appellee

v.Christepher E. LUA, Appellant.

No. CR–14–0283–PR.

Supreme Court of Arizona.

June 19, 2015.

Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section, Linley Wilson (argued), Assistant Attorney General, Phoenix, Attorneys for State of Arizona.

Barbara Cook–Hamp, Legal Advocate, Jill L. Evans (argued), Deputy Legal Advocate, Kingman, Attorneys for Christepher E. Lua.

Vice Chief Justice PELANDER authored the opinion of the Court, in which Chief Justice BALES, Justices BERCH, BRUTINEL, and TIMMER joined.

Opinion

Vice Chief Justice PELANDER, opinion of the Court.

¶ 1 We address in this case whether, in a prosecution for second-degree murder, the trial court may instruct the jury on manslaughter over a defendant's objection if the evidence supports a finding that the killing occurred “upon a sudden quarrel or heat of passion resulting from adequate provocation by the victim” (“provocation manslaughter”) under A.R.S. § 13–1103(A)(2). We hold that the court may give such an instruction.

I.

¶ 2 Christepher Lua was tried on two counts of attempted second-degree murder and other charges. At the close of evidence, the trial court, over Lua's objection, instructed the jury on attempted provocation manslaughter which the court ruled was a lesser-included offense of attempted second-degree murder. Lua was convicted of both counts of attempted provocation manslaughter.

¶ 3 The court of appeals affirmed, holding that the jury instruction was proper because provocation manslaughter is a lesser-included offense of second-degree murder and the evidence supported the instruction, a point Lua did not dispute. State v. Lua, 235 Ariz. 261, 261 ¶ 1, 264 ¶ 12, 330 P.3d 1018, 1018, 1021 (App.2014). In doing so, the court rejected Lua's argument that Peak v. Acuna, 203 Ariz. 83, 50 P.3d 833 (2002), “stands for the proposition that provocation manslaughter is not a lesser-included offense of second-degree murder.” Id. at 263 ¶ 8, 330 P.3d at 1020.

¶ 4 We granted review because the issue raised is recurring and of statewide importance. We have jurisdiction pursuant to Article 6, Section 5(3), of the Arizona Constitution and A.R.S. § 12–120.24.

II.

¶ 5 An instruction on an offense other than that charged is proper if the offense is included within the charged offense and the evidence supports giving the instruction. See State v. Miranda, 200 Ariz. 67, 68 ¶ 2, 22 P.3d 506, 507 (2001) ; see also Ariz. R.Crim. P. 23.3 (requiring court to submit jury verdict forms “for all offenses necessarily included in the offense charged,” including an attempt to commit the offense if such attempt is a crime); State v. Valenzuela, 194 Ariz. 404, 406 ¶ 10, 984 P.2d 12, 14 (1999). Whether an offense is included within another is a question of statutory interpretation that we review de novo. State v. Geeslin, 223 Ariz. 553, 555 ¶ 9, 225 P.3d 1129, 1131 (2010).

A.

¶ 6 A person commits second-degree murder, a class 1 felony, if, “without premeditation,” the person causes the death of another “intentionally,” “knowingly,” or “recklessly” “[u]nder circumstances manifesting extreme indifference to human life.” A.R.S. § 13–1104(A), (C). A person commits provocation manslaughter, a class 2 felony, by “[c]ommitting second degree murder ... upon a sudden quarrel or heat of passion resulting from adequate provocation by the victim.” Id. § 13–1103(A)(2), (C).

¶ 7 A lesser-included offense is one “composed solely of some but not all of the elements of the greater crime so that it is impossible to have committed the crime charged without having committed the lesser one.” State v. Celaya, 135 Ariz. 248, 251, 660 P.2d 849, 852 (1983). Under that “elements test,” provocation manslaughter is not a lesser-included offense of second-degree murder. Although it is a lesser degree of homicide, see A.R.S. §§ 13–1101(2), –1103(C), –1104(C), provocation manslaughter has the same (not fewer) elements as second-degree murder, with the added mitigating “circumstance” of adequate provocation. See Peak, 203 Ariz. at 84 ¶ 6, 50 P.3d at 834 (“Instead of deleting an element of the greater offense, [A.R.S. § 13–1103(A)(2) ] specifies a different circumstance as a requirement to find the lesser offense.”). Thus, it is possible to commit second-degree murder without committing provocation manslaughter; one who intentionally, knowingly, or with extreme recklessness kills another without premeditation and without provocation commits second-degree murder, but does not simultaneously commit provocation manslaughter. See id. at 84–85 ¶ 6, 50 P.3d at 834–35 (holding that double jeopardy did not bar retrial for second-degree murder following acquittal of provocation manslaughter because the acquittal “d[id] not necessarily mean that [Defendant] did not commit second-degree murder,” rather, “[i]t might well have meant that the jury found Defendant had not acted after a sudden quarrel or in the heat of passion”).

B.

¶ 8 Lua first argues that Arizona's statutes do not allow a provocation-manslaughter instruction in a second-degree murder case unless that offense is separately charged or the defendant consents to an amendment adding that charge. The pertinent statutes do not expressly address Lua's argument, and therefore we consider their context, historical background, spirit and purpose, and the effects and consequences of competing interpretations in determining legislative intent. See State ex rel. Montgomery v. Harris, 237 Ariz. 98, 101 ¶ 13, 346 P.3d 984, 987 (2014).

¶ 9 Allowing a provocation-manslaughter instruction in a second-degree murder trial if the evidence warrants such an instruction comports with the framework of Arizona's homicide statutes, which provide increased punishment for progressively more serious crimes.See A.R.S. §§ 13–1102 to –1105; cf. State v. Woodall, 155 Ariz. 1, 4, 744 P.2d 732, 735 (App.1987) (observing that the drafters of the current homicide provisions intended that the “degree of culpable mental state” govern the degree of homicide). The classification of provocation manslaughter as a lesser-grade felony than second-degree murder reflects a policy that those who commit second-degree murder “upon a sudden quarrel or heat of passion resulting from adequate provocation by the victim” deserve a lesser punishment. A.R.S. § 13–1103(A)(2) ; cf. id. § 13–101(4) (declaring the “policy” and “general purposes” of the criminal code “[t]o differentiate on reasonable grounds between serious and minor offenses and to prescribe proportionate penalties for each”); State v. Garza Rodriguez, 164 Ariz. 107, 111, 791 P.2d 633, 637 (1990) (concluding that A.R.S. § 13–1904(A)(2) reflects the legislature's determination that those who use deadly weapons or dangerous instruments deserve a greater punishment).

¶ 10 Because the state is required to prove second-degree murder to obtain a provocation-manslaughter conviction, however, see § 13–1103(A)(2), the state has little incentive to separately charge provocation manslaughter, even if the facts warrant it. As a practical matter, therefore, adopting Lua's argument would undermine the legislature's intent to reduce second-degree murder to manslaughter when circumstances exist to justify the less-serious charge.

¶ 11 Legislative history also suggests that the legislature intended to allow a provocation-manslaughter verdict in a second-degree murder case when justified by the evidence. Before 1978, Arizona's criminal laws codified the common-law definitions of murder as “the unlawful killing of a human being with malice,” and manslaughter as “the unlawful killing of a human being without malice.” See former A.R.S. §§ 13–451, –455, repealed by 1977 Ariz. Sess. Laws, ch. 142, § 15 (1st Reg. Sess.). Under that scheme, a killing that was willful, deliberate, and premeditated, or occurred during the commission of certain specified crimes, constituted first-degree murder. State v. Schantz, 98 Ariz. 200, 206, 403 P.2d 521, 524–25 (1965). A killing that lacked willfulness, deliberation, or premeditation, and did not occur during the commission of one of the specified crimes but was accompanied by malice, constituted second-degree murder. Id. at 206, 403 P.2d at 525. And if the killing lacked the element of malice, it was still the lesser offense of manslaughter, “which if committed upon a sudden quarrel or heat of passion [wa]s known as voluntary manslaughter.” Id.

¶ 12 When the legislature adopted the current criminal code in 1977, it retained these distinctions. It defined the “premeditation” required for first-degree murder, A.R.S. § 13–1105(A)(1) (former § 13–452), “in terms of intention or knowledge that precedes the killing by enough time to allow reflection and exclude[d] killings that occur as a result of a sudden quarrel.” State v. Thompson, 204 Ariz. 471, 476 ¶ 18, 65 P.3d 420, 425 (2003) (discussing A.R.S. § 13–1101(1) ); see also State v. Christensen, 129 Ariz. 32, 35, 628 P.2d 580, 583 (1981) (noting that the current criminal code “prescribe[s] the conditions when murder may be reduced to manslaughter through the lack of reason or planning; that is, when a person acts in the heat of passion with adequate provocation”). But rather than defining manslaughter as the “unlawful killing of a human being without malice,” as it had done previously, the legislature defined manslaughter in ways that gave content to the meaning of “without malice.” Cf. Christensen, 129 Ariz. at 35, 628 P.2d at 583 (“The distinguishing characteristic between murder and manslaughter is that malice is not an element of the latter.”). Compare A.R.S. § 13–1103(A)(2), with State v. Mendell, 111 Ariz. 51, 54, 523 P.2d 79, 82 (1974) (“[M]alice is implied when no considerable provocation appears ....” (quoting former A.R.S. § 13–451(B))). Nothing in the current statutes or their histories suggests that the legislature intended to change the former statutory...